52:0622(59)AR - -Treasury and NTEU, Chapter 143 - - 1996 FLRAdec AR - - v52 p622



[ v52 p622 ]
52:0622(59)AR
The decision of the Authority follows:


52 FLRA No. 59

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

U.S. DEPARTMENT OF THE TREASURY

U.S. CUSTOMS SERVICE

EL PASO, TEXAS

(Agency)

and

NATIONAL TREASURY EMPLOYEES UNION

CHAPTER 143

(Union)

0-AR-2804

_____

DECISION

November 20, 1996

_____

Before the Authority: Phyllis N. Segal, Chair; Tony Armendariz and Donald S. Wasserman, Members.

I. Statement of the Case

This matter is before the Authority on exceptions to an award of Arbitrator Diane Dunham Massey filed by the Agency under section 7122(a) of the Federal Service Labor-Management Relations Statute (Statute) and part 2425 of the Authority's Regulations. The Union filed an opposition to the Agency's exceptions. The Agency seeks leave to file a response to the Union's Opposition. The Union opposes the filing of such a response.

The Arbitrator's award, in relevant part, ordered the Agency to reimburse the grievant the amount of overtime pay he would have earned had the Agency not discriminated against him for a period of 4 months in violation of the Rehabilitation Act of 1973, 29 U.S.C. § 703 et seq. (1994) (Rehabilitation Act).

For the following reasons, we conclude that the Agency has failed to establish that the award is deficient under section 7122(a) of the Statute. Accordingly, we deny the Agency's exceptions.

II. Background and Arbitrator's Award

During 1991, the grievant, a Customs Inspector, suffered two episodes of mental disorder. After the second episode occurred in November, the grievant was hospitalized for 10 days. The Agency then placed him on extended involuntary administrative leave with full pay and benefits pending the results of a fitness-for-duty examination. The grievant was first examined by a physician in December 1991. The physician's report of January 1992 recommended that the grievant remain on medical leave until he could be examined by a neurologist. The Agency requested funding for a neurological exam in July 1992, and the grievant was examined by a neurologist in August 1992. Based on the neurologist's recommendation that the grievant receive a psychiatric examination, and pursuant to the grievant's request, the grievant was examined by his own psychiatrist in September 1992.

In November 1992, the Agency sought clarification from the psychiatrist concerning the grievant's diagnosis and prognosis. In February 1993, the doctor supplied a more detailed synopsis of the grievant's medical and psychiatric condition and recommended that the grievant be allowed to return to work. The grievant was found to be fit for duty and returned to his job on March 1, 1993, about 15 months after he suffered the second episode of mental disorder.

The Union grieved the Agency's delay in returning the grievant to work, claiming that the Agency discriminated against the grievant in violation of his rights under the Rehabilitation Act. The Union charged that the grievant lost the opportunity to work substantial amounts of overtime during the time that he was on administrative leave. The Union also sought compensatory damages. The parties stipulated that the disputed matter is covered by the Rehabilitation Act, which is incorporated in the parties' collective bargaining agreement.

The Arbitrator found that the Union established a prima facie case of discrimination under the Rehabilitation Act. The Arbitrator also found that the evidence indicated that the Agency's delay in processing the request for a neurological examination "discriminated against the [g]rievant by substantially delaying the means by which the [g]rievant could prove that he was a qualified handicapped employee." Id. at 23. In this regard, the Arbitrator found that the Agency's delay in procuring the required neurological examination, which ultimately caused the grievant to remain on administrative leave instead of going back to work, was attributable to the Agency's discrimination against the grievant. The Arbitrator noted that it reasonably should have taken the Agency no more than 3 months to complete the neurological report. She found that the Agency's explanation of the reason for the additional 4-month delay in procuring the neurological examination (1) "fell short", and that such an extended delay by the Agency "raises a strong presumption that the Agency was confused as to what to do with the [g]rievant because of his disability and that the [g]rievant's handicap was the only reason for the Agency's refusal to allow him to return to his regular job." Id. at 18. She also stated:

[t]he weight of the evidence indicates that some of the delay was due to the Agency's confusion and stalling about what to do with the [g]rievant because of his particular handicap. No handicapped person should have to wait the amount of time that the [g]rievant had to wait before returning to work because of the Agency's ultimately unfounded reluctance to return him to work.

Id. at 26. Having found that the Agency discriminated against the grievant by delaying the neurological examination, the Arbitrator concluded that "but for the Agency's actions, the [g]rievant would have earned overtime pay from November 1, 1992 through March 1, 1993[.]" Id. at 28. The Arbitrator awarded the grievant backpay and interest for the overtime he would have worked during that 4-month period, and denied the Union's request for compensatory damages.

III. Preliminary Matter Concerning Agency's Request to File a Response to the Union's Brief in Opposition to Agency's Exception

Pursuant to 5 C.F.R. § 2429.26(a), the Agency requests leave to file a Response to the Union's Brief in Opposition to Agency's Exception (Response). In support, the Agency states that its Response addresses issues raised by the Union in its Opposition and cites specific testimony and evidence presented at the hearing.

The Union moves to strike the Agency's Response. In support of this motion, the Union states that the Authority's Regulations do not permit a party to respond to another party's opposition to exceptions and that the Agency has not shown why the Authority should consider its supplemental submission. The Union states that the Agency should have presented in its brief in support of exceptions the evidence and argument that it relies upon in its Response.

The Authority's Regulations do not provide for the filing of a supplemental submission. Therefore, it is incumbent upon the moving party to demonstrate a reason why the Authority should consider such supplemental submission. See, e.g., National Union of Labor Investigators and U.S. Department of Labor, Office of Labor Management Standards, 46 FLRA 1311, 1311 n.1 (1993). The Union's Opposition does not raise matters that the Agency did not have the opportunity to address in its exceptions. Accordingly, we deny the Agency's request for leave to file its Response.(2)

IV. Positions of the Parties

A. Agency's Contentions

The Agency argues that there is "a complete lack of evidence or arbitral analysis tending to establish that the stated reason of the Agency was false, and that discrimination was the real reason for keeping the [g]rievant on administrative leave." Exceptions at 6. Relying on St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993) (Hicks), the Agency contends that the Arbitrator erred in assigning the burden of proof to the Agency rather than to the Union. Specifically, the Agency cites to that part of the award where the Arbitrator states that "[t]he Agency's evidence simply fell short of justifying the entire seven months time that it took to clear the [g]rievant through the neurological exam." Id. at 7 (quoting Award at 18). The Agency also submits that the finding of discrimination is inconsistent with the Arbitrator's finding that the Agency did not possess ill motives and that there was no testimony showing discriminatory intent.(3)

B. Union's Opposition

The Union contends that because this case concerns alleged discrimination under the Rehabilitation Act, the Agency's reliance on Hicks, which arose under Title VII of the Civil Rights Act of 1964 (Title VII), is misplaced. In any event, the Union maintains that the Arbitrator's award is consistent with Hicks as well. In this regard, the Union submits that the Arbitrator followed the analytical framework for the allocation of burdens discussed in Hicks. The Union argues that the Agency's assertion constitutes nothing more than its disagreement with the Arbitrator's finding that, with respect to the delay in obtaining approval for, and the receipt of, a report concerning the grievant's neurological examination, the "Agency had not met its burden of establishing a legitimate nondiscriminatory reason for its actions." Opposition at 14. The Union submits that the Agency's argument represents mere disagreement with the Arbitrator's finding that the nondiscriminatory reason proffered by the Agency was pretextual. In this regard, the Union contends that the Arbitrator need not base a finding of discriminatory intent on direct evidence.

V. Analysis and Conclusions

The Authority's review of the Agency's exceptions is de novo because they involve the award's consistency with law. E.g., Social Security Administration and American Federation of Government Employees, Local 3342, 51 FLRA 1700, 1705 (1996).

Section 504 of the Rehabilitation Act provides in relevant part:

No otherwise qualified individual with a disability . . . shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination . . . under any program or activity conducted by any Executive agency . . . .

29 U.S.C. § 794(a) (1994); see also American Federation of Government Employees, Local 2921 and U.S. Department of Defense, Army and Air Force Exchange Service, Dallas, Texas, 50 FLRA 69, 72 (1994). The method of analysis and the allocation of burdens of proof depend upon the type of discrimination alleged, and on whether the employer denies or admits to relying on the plaintiff's handicap as a basis for the challenged employment decision. Smith v. Barton, 914 F.2d 1330, 1339 (9th Cir. 1990), cert. denied, 501 U.S. 1217 (1991). Where, as here, an agency asserts that it took a disputed action for reasons unrelated to a person's handicapping condition, courts have applied the analytical framework employed under Title VII. See id.; Barth v. Gelb, 2 F.3d 1180, 1185 (D.C. Cir. 1993) (Gelb), cert. denied sub nom. Barth v. Duffy, 114 S. Ct. 1538 (1994); see also White v. York, 45 F.3d 357, 360-61 & n.6 (10th Cir. 1995) (White).(4)

The plaintiff always bears the burden of persuasion as to the ultimate fact of intentional discrimination. Hicks, 509 U.S. at 507. The plaintiff has the initial burden of producing evidence to support a prima facie case of discrimination. See, e.g., U.S. Department of Commerce, Patent and Trademark Office and National Treasury Employees Union, Chapter 243, 52 FLRA 358, 362 (1996) (NTEU) (applying Title VII framework to claim of racial discrimination). In the context of a claim of discrimination under the Rehabilitation Act, a prima facie case is established if the plaintiff shows that he or she: (1) is a handicapped person within the meaning of the Rehabilitation Act; (2) is otherwise qualified for the position; (3) works for a program or activity covered under the Rehabilitation Act; and (4) was adversely treated attributed solely to the presence of a handicap. See Doe v. Attorney General of the United States, 44 F.3d 715, 718 (9th Cir. 1995) (Doe); Jackson, 22 F.3d at 278.

Once a prima facie case is shown, the burden of production shifts to the defendant, who must produce evidence of a legitimate non-discriminatory reason for taking the challenged action. NTEU, 52 FLRA at 362; Doe, 44 F.3d at 718. If such evidence is produced, the burden shifts to the plaintiff to produce evidence that the reason was pretextual and to persuade the trier of fact that intentional discrimination has occurred. NTEU, 52 FLRA at 362; Doe, 44 F.3d at 719.

The Agency's exceptions challenge the Arbitrator's finding that the Union met its burden of persuasion on the issue of intentional discrimination. In particular, the Agency states that the Arbitrator erred in failing to find that the Agency's asserted reason for the delay in obtaining a neurological examination--administrative problems in obtaining approval for that examination--justified the amount of time that it took to arrange the examination. As the Authority recently stated in NTEU, the Supreme Court concluded in Hicks that "'[t]he factfinder's disbelief of the reasons put forward by the defendant . . . may, together with the elements of the prima facie case, suffice to show intentional discrimination. Thus, rejection of the defendant's proffered reasons will permit the trier of fact to infer the ultimate fact of intentional discrimination . . . .'" NTEU, 52 FLRA at 366 (citation omitted).

The Arbitrator applied this standard in determining, based on inferences from the record, that the Union demonstrated that the Agency discriminated against the grievant. First, she found that the Union established a prima facie case of discrimination. She then examined all of the evidence and rejected the Agency's proffered reason for the 4-month delay in procuring the grievant's neurological examination, which ultimately caused the Agency to delay the grievant's return to work. Based on the evidence in the record, the Arbitrator concluded that the Agency intentionally discriminated against the grievant. As we recently stated in NTEU, the Authority does not look behind an arbitrator's finding of fact. Id. at 369. In light of the Arbitrator's factual findings, under properly allocated burdens,(5) we conclude that the evidence supports the Arbitrator's ultimate finding of intentional discrimination. Accordingly, the Agency's exceptions are denied.

V. Decision

The Agency's exceptions are denied.




FOOTNOTES:

1. The Agency argued that the request for the neurological examination could not be approved until a matter concerning the excessive cost of the initial medical examination was resolved.

2. Our denial of the Agency's request renders the Union's motion to strike moot.

3. The Agency has excepted only to the Arbitrator's finding of liability, not to the remedy awarded.

4. However, the framework for analyzing Title VII cases does not apply where an "employer challenges a plaintiff's claim that he [or she] is a 'qualified handicapped person' who, with 'reasonable accommodation, can perform the essential functions of the position in question[,]'" or "the employing agency offers the affirmative defense of 'undue hardship on the operation of its program.'" Gelb, 2 F.3d at 1186. EEOC or o